Yesterday, 7 March 2018, the Victorian Attorney-General, Mr Pakula, introduced the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 (Vic) (the “Bill”) into the Victorian Legislative Assembly. The purpose of the Bill is
outlined in the explanatory memorandum:

“The purpose of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 is to provide for child abuse plaintiffs to sue an organisational defendant in respect
of unincorporated non-government organisations which use trusts to conduct their activities,
and to consequentially amend other Acts. The aim of the Bill is to respond to recommendation
26.1 of the Family and Community Development Committee of the Victorian Parliament's
November 2013 Betrayal of Trust report.”

The Betrayal of Trust Report

On 13 November 2013, the Betrayal of Trust report (the “report”) was tabled by the Family and Community Development Committee.
This was the final report of the Victorian Parliament’s Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations. The purpose of this report was to investigate the “processes by which religious
and other non-government organisations respond to the criminal abuse of children by
personnel within their organisations” (report, p v).

This Bill aims to respond to finding 26.3 of the report. This finding, as per page
1 of the explanatory memorandum, suggests that:

"the lack of incorporation by non-government organisations that work with children
can make it difficult for survivors of abuse in organisational settings to identify
an appropriate entity to sue for damages.”

This difficulty occurs in the form of the “Ellis defence”, a defence first realised
in 2007 by the New South Wales Court of Appeal, whereby the court found that unincorporated
organisations which use trusts to conduct their activities do not legally exist, and
therefore cannot be sued in their own right.

This Bill therefore purports to respond to this issue by implementing recommendation
26.1 of the report which states (report, Part H, p 536):

“That the Victorian Government consider requiring non-government organisations to
be incorporated and adequately insured where it funds them or provides them with tax
exemptions and/or other entitlements.”

The Bill

The Bill purports to respond to recommendation 26.1 by creating the legislative means
for “child abuse plaintiffs to sue an organisational defendant in respect of unincorporated
non-government organisations which use trusts to conduct their activities” (section
1).

Section 7 of the Bill deals with the nomination of a proper defendant. This section
allows unincorporated organisations, including religious institutions, to allocate
a legal entity with sufficient assets for child abuse survivors to sue.

An NGO to which this Act applies, in relation to any claim founded on or arising from
child abuse, with the consent of the nominee, may nominate an entity that is capable
of being sued—

to act as a proper defendant to the claim on behalf of the NGO; and

to incur any liability arising from the claim on behalf of the NGO.

If the organisation does not nominate a legal entity for this purpose, the Bill then
purports to give the court the power to appoint the unincorporated organisation’s
trusts to be sued on their behalf, as per section 8 of the Bill.

Section 13 then provides for proceedings to be commenced against an NGO pending nomination
or appointment of proper defendant (as per section 7).

With regard to the impact of the Bill, Attorney-General Martin Pakula stated in a
media release on 6 March 2018:

“We’re changing the law so that all organisations, regardless of their legal structure,
can be held to account for the harm caused to survivors of child abuse.

We have consulted closely with victim survivor groups, the courts, the legal profession
and religious bodies to ensure that the reforms will deliver justice to victims.”

TimeBase is an independent, privately owned Australian legal publisher specialising
in the online delivery of accurate, comprehensive and innovative legislation research
tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not
substitute for the advice of competent legal counsel.